U.S. v. Occhipinti, s. 92-3179

Citation998 F.2d 791
Decision Date06 July 1993
Docket Number92-3184,92-3185 and 92-3192,Nos. 92-3179,s. 92-3179
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Frank James OCCHIPINTI, Jr., Austin Michael Suttles, Timothy James Spence, Tina Marie Swab, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

David C. Voss, Topeka, KS, for defendant-appellant Frank James Occhipinti, Jr.

Marilyn M. Trubey (Charles D. Anderson, Federal Public Defender, with her on the brief), Branch Chief, Federal Public Defender's Office, Topeka, KS, for defendant-appellant Austin Michael Suttles.

Allan A. Hazlett, Topeka, KS, for defendant-appellant Timothy James Spence.

Matthew B. Works, of Works, Works, & Works, P.A., Topeka, KS, for defendant-appellant Tina Marie Swab.

Richard L. Hathaway (Lee Thompson, U.S. Atty., and Gregory G. Hough, Asst. U.S. Atty., Topeka, KS, on the briefs), Asst. U.S. Atty., Topeka, KS, for plaintiff-appellee.

Before SEYMOUR, ANDERSON, and TACHA, Circuit Judges.

TACHA, Circuit Judge.

Defendants Frank James Occhipinti, Jr., Austin Michael Suttles, Timothy James Spence, and Tina Marie Swab appeal their convictions and sentences for offenses arising out of their participation in an illegal marijuana farm located in Anderson County, Kansas. 1 We exercise jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742 and affirm.

I. BACKGROUND

On the morning of June 24, 1991, Officer Joe Robinson, Undersheriff in Allen County, Kansas, met with Special Agents Rodney Page and Brad Cordts of the Kansas Bureau of Investigation ("KBI") for the purpose of investigating rural property suspected of containing marijuana. Robinson had earlier received information regarding marijuana growing in the region and had aerially surveyed both Allen and Anderson Counties. The officers searched three farms that morning but made no arrests. During the noon break, Robinson received information indicating that the defendants were growing marijuana on their property, which is located approximately one mile west of Kincaid, Kansas in Anderson County. 2 The officers then decided to conduct a "walk-in" search of the defendants' property.

The officers drove north past the defendants' residence and parked in a pasture. They then entered the property and proceeded south along a creekbed and through timber and underbrush. The property was fenced and displayed "No Trespassing" signs. The officers discovered three "cold frames" constructed of wood and plastic in the wooded area behind the farm house. The cold frames housed several hundred cultivated marijuana plants ranging in size from one to five feet. Empty potting soil bags and fertilizer boxes were located outside the cold frames.

The officers then followed a path and green garden hose south into a clearing, where they found shovels, post hole diggers, hand tools, more planted marijuana seedlings, and a flannel shirt. The path and hose continued south to another clearing, where they discovered three "greenhouses" made of tin, wood, and plastic. The greenhouses contained several hundred marijuana seedlings growing in foam cups filled with potting soil. The officers followed the path and hose south until they were several hundred feet from the residence. They observed that the path led to the rear door of the residence and that the hose ran under the house. The officers did not proceed further because the area contained outbuildings and because a fence divided the residence from the pasture. Rather, the officers decided to head back and obtain a search warrant.

As the officers were leaving, they discovered Mr. Occhipinti watching them from a marijuana field near the first clearing. The officers found a marijuana cigarette by his foot and observed that he was covered with dirt and had mud caked on his fingers, as if he had been digging. The officers placed him under arrest for cultivation of marijuana. The officers also testified that they heard rustling in the woods. Out of concern for Occhipinti's safety, they decided to take him along the path to the house rather than back through the underbrush. Robinson returned to the car and met them at the house. He then radioed for assistance. At that point, the officers decided to enter the residence and perform a "protective sweep," which lasted about two minutes. Soon thereafter, other law enforcement officers arrived, including Kansas State Trooper Heady and Anderson County Sheriff Fred Litsch. 3

While they were at the residence, a young woman in a van stopped and told the officers that a white male wearing jeans but no shirt had crawled out of the ditch and was running across Highway K-31 towards the Kincaid Co-op Elevator. The man was being chased by two pit bull dogs. He was apprehended running southbound on railroad tracks and told his Miranda rights. He identified himself as Timothy Spence, of Hemet, California, and stated that he was headed for a Grateful Dead concert. When asked why he was headed away from Kansas City, where the concert was to be held, Spence had no comment. The officers found a .44 caliber shell in his possession.

Spence and Occhipinti were kept separated at the farm and during their transport to the jail in Garnett, Kansas. At the jail, Occhipinti leaned over and asked Spence, "Who the f____ picked Kansas?" Spence turned away and did not answer.

Agent Page then began preparation for the search warrant. Officer Robinson, however, drove to Mildred, Kansas, located three miles south of the defendants' farm in Allen County, to get ice for the water jugs. As he parked at the store, he noticed a station wagon with California tags. The driver was an older white male; the passenger a young white female. The car also contained two pit bull dogs and several bags of potting soil. Officer Robinson followed them as they drove north back into Anderson County and radioed Trooper Heady at the residence that he believed more occupants of the residence were en route. The car drove past the farm but turned around at the dead-end, at which point Trooper Heady and Officer Robinson stopped the car and arrested the occupants. The driver produced identification as Tony Coffin, although he admitted to being Michael Suttles after requesting the officers to retrieve from the vehicle heart medication prescribed to Suttles. Among the various documents linking Suttles to the marijuana farm was a real estate sales agreement for the property in the name of Tony Coffin. The automobile itself contained a case of foam cups like those used for the marijuana seedlings and eight forty-pound bags of potting soil.

After initially being held in state custody, federal charges were brought against the defendants on August 15, 1991. On August 28, 1991, a superseding indictment charged each of the defendants with one count of conspiracy to possess and distribute marijuana in violation of 21 U.S.C. § 846, one count of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 841(b)(1)(A), and one count of knowingly using a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1). A jury convicted the defendants on the first two counts but acquitted them on the third.

On appeal, the defendants make several common arguments and several individual arguments. All of the defendants allege a violation of their rights to a speedy trial and challenge the denial of their motions to suppress evidence based on (1) Officer Robinson's lack of jurisdiction in Anderson County, (2) the invalid search warrant issued for the residence, and (3) the illegal stop of Suttles's vehicle. We also address several individual arguments: (1) Occhipinti appeals the denial of his motion to suppress evidence based on the warrantless protective sweep of the residence; (2) Swab challenges the admission of evidence as co-conspirator statements under Fed.R.Evid. 801(d)(2)(E) and the admission of certain codefendant statements; and (3) Spence challenges the calculation of his sentence under the United States Sentencing Guidelines.

II. DISCUSSION
A. Speedy Trial

Defendants contend that they were denied a speedy trial. They were arrested by authorities from the State of Kansas on June 24, 1991. On August 15, 1991, the United States Attorney for the District of Kansas filed federal charges against the defendants; the state charges were simultaneously dropped. The defendants were tried beginning February 3, 1992, and at that point had been continuously incarcerated for a total of 224 days. They make arguments under both the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and the Sixth Amendment. We review the trial court's denial of a motion to dismiss under the Speedy Trial Act for an abuse of discretion. See United States v. McKinnell, 888 F.2d 669, 675 (10th Cir.1989). The district court's compliance with the requirements of the Act, however, is a question of law which we review de novo. We review the defendants' Sixth Amendment arguments de novo. See United States v. Bagster, 915 F.2d 607, 611 (10th Cir.1990).

"The dual purpose of the Speedy Trial Act is to protect a defendant's constitutional right to a speedy indictment and trial, and to serve the public interest in bringing prompt criminal proceedings." United States v. Saltzman, 984 F.2d 1087, 1090 (10th Cir.1993), cert. denied, --- U.S. ----, 113 S.Ct. 2940, 124 L.Ed.2d 689 (1993). Toward that end, the Act requires that "[i]n any case in which a plea of not guilty is entered, the trial of a defendant charged in an information or indictment with the commission of an offense shall commence within seventy days from the filing date ... of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs." 18 U.S.C. § 3161(c)(1). The Act, however, does not simply count the days between indictment and trial. Rather, the Act excludes certain periods of that time...

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